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Stokes, connected with said Read, and against any foreclosure of said mortgage, said Edward S. Stokes has deposited with William E. D. Stokes bonds of said Hoffman House to the par value of $150,000.” When we read this clause in connection with the rest of the agreement, having in mind the fact that $125,000 of the $150,000 bonds referred to had been deposited some months prior as collateral security for this defendant's notes, we necessarily reach the conclusion that it forms a part of a present agreement, and that the contention that it should be treated as a recital of a prior transaction is without foundation. Indeed, that question was passed upon necessarily in this court in Stokes y. Stokes, supra, when the court held that, by reason of the failure of William E. D. Stokes to perform his part of the agreement, Edward S. Stokes could not be compelled to deposit the $25,000 in bonds required to make the amount $150,000, as provided in the agreement. It could not, of course, have been so held were it the fact that paragraph “sixthly” was but the recital of a prior agreement. But we need not stop to discuss this proposition seriously, for the plaintiff, in his reply, alleges that the said $125,000 of Hoffman House bonds were deposited with, and are still held by, plaintiff in part performance of the contract of August 18, 1891, and for the purposes therein recited, and as set forth in paragraph “sixthly," and further alleges that the defendant has neglected and refused to deposit with the plaintiff $23,000 additional Hoffman House bonds, as required by said agreement.

We are thus brought to the real question of the case, or, rather, to what was a substantial question prior to the decision of this court holding the agreement was without consideration; and that is whether the plaintiff has the right to hold these bonds, under the written agreement of August 18th, as collateral for the Read notes, and as collateral for the guaranties of Stokes against all claims against the Hoffman House by C. H. Read & Co., or John W. Mackey, or any other person, as the creditors of the said C. I. Read & Co., as well as against any foreclosure of the Hoffman House mortgage; for it is very plain that, if the plaintiff is entitled to hold the bonds under this agreement for any purpose, he is entitled to hold them for all the purposes I have mentioned,- to hold them until the plaintiff has made good every guaranty contained in that agreement. Unquestionably, the agreement covered these bonds, and, if plaintiff had performed the agreement on his part, he would be entitled to hold them to assure performance on the part of the defendant. But it was the defendant's contention that plaintiff failed to carry out his part of the agreement, and, by reason thereof, there was a failure of consideration; so that the agreement ceased to be binding upon this defendant long prior to the commencement of this action. The evidence relied upon to support this contention consists

of the judgment roll in the action of Edward S. Stokes against William E. D. Stokes, which was put in evidence on the trial. This judg. ment was not pleaded in bar, as, indeed, it could not have been, for it is not a bar to an action on the notes; but it is insisted that it contains an adjudication between these parties that the plaintiff failed to perform the consideration of the agreement which he now invokes for his protection, and that such adjudication is conclusive evidence of the fact adjudged. The general rule on this subject is well known to be that a former judgment of the same court, or of a court of competent jurisdiction, directly upon the point in issue, is, as a plea, a bar, or as evidence, conclusive between the same parties or those claiming under them, upon the same matter, directly in question, in a subsequent action or proceeding. This has been the rule certainly since the Duchess of Kingston's Case, 11 State Tr. 261. See Gardner v. Buckbee, 3 Cow. 120; Clemens v. Clemens, 37 N. Y. 73; Embury v. Connor, 3 N. Y. 511; Gall v. Gall, 17 App. Div. 312, 45 N. Y. Supp. 248; Harris v. Harris, 36 Barb. 88; White v. Coatsworth, 6 N. Y. 137; Stowell v. Chamberlain, 60 N. Y. 276.

The judgment roll was in an action between the same parties. It was about the same matter, for it involved the right of W. E. D. Stokes to compel the delivery to him of $25,000 of the $150,000 of bonds provided for by the agreement. It was directly in question. Indeed, there was no other question, for the defendant in his answer, as a counterclaim, pleaded that E. S. Stokes had failed to deposit $25,000 of the $150,000 of the Hoffman House bonds as security, pursuant to the provisions of the said agreement, and demanded judgment for the deposit of such additional bonds, or the payment of their equivalent in value. To this counterclaim the plaintiff, E. S. Stokes, made reply, denying that the defendant was entitled to hold the $150,000 of bonds under the said agreement, and alleging that he had failed to carry out his part of the contract. The case coming on for trial, the plaintiff consented that the complaint should be dismissed, but the defendant insisted upon his right to establish his counterclaim, and thereupon was litigated the question relating to the consideration of the agreement, and the right of William E. D. Stokes to enforce its performance. Not only does it appear from the requests to find by counsel for both parties, but also by the findings actually made by the court, that the matter in controversy related to the consideration of the agreement and the right of William E. D. Stokes to insist upon performance thereunder by Edward S. Stokes. The conclusion of law, as found by the court, was to the effect that it was the intent of the parties that William E. D. Stokes should purchase of Read the whole of the 1,963 shares, or such portion thereof as the plaintiff should not buy; and as the defendant bad failed to make such purchase within a reasonable time, and, on account of the refusal of Read to sell, could not

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make it, he was not entitled to enforce the was a failure of the consideration, and hence contract. Upon this decision judgment was he was not entitled to require Edward S. entered, from which we extract the following: Stokes to make deposit of such of the bonds "Adjudged that the cause of action, set forth as had not been deposited under the agreein the defendant's counterclaim, be dismissed ment. But, in so doing, the court necessarily upon the merits, without costs.

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and conclusively determined that William E. is further adjudged that the construction of D. Stokes was not entitled to retain, under the contract of August 18, 1891, is that the that agreement, any part of the bonds called understanding of the parties was that the de for by it; for, as we have observed, the fendant should purchase of Read the whole of agreement was not divisible, neither was the his 1,963 shares of stock, or such portion there consideration divided and apportioned to the of as should be sufficient to make the par different provisions of the agreement. In ties to said contract the sole owners of the due course, the judgment reached this court; whole of the stock of the Hoffman House. In and, while the court was not unanimous in other words, the defendant was to buy the affirming the judgment, yet the affirmance, whole of the stock, or such portion thereof as under our procedure, put at rest all controthe plaintiff should not buy. It is further ad versy relating to the claim of right on the judged that the defendant, not having pur part of William E. D. Stokes to enforce the chased the said stock of Read within a reason agreement. The prevailing opinion of the able time from such contract, and the proof court, after a careful consideration of the being that he has been unable to purchase, by agreement and the subsequent conduct of reason of the refusal of Read to sell, the con the parties under it, said: "Ought specific tract cannot be enforced against the plaintiff." performance under ihe circumstances be now

Surely, it is unnecessary to argue that the decreed? We think not. The liability of question there passed upon by the court was the plaintiff to the defendant has not been the precise question involved in this case. increased. The defendant, through the reThe only difference between the two cases is fusal of Read to sell, has not been able to that in that case we had $25,000 of the $150, carry out the understanding of the parties, 000 involved, while in this one $125,000 of which formed the real consideration for the the amount agreed upon is involved. One deposit with him of the additional collateral, amount of bonds was larger than the other, A contract must possess certain elements in but each formed a part of the agreed de order that a court of equity may exercise juposit of $150,000 of bonds. The considera risdiction to compel its performance. 'It tion was not susceptible of apportionment. must be upon a valuable consideration. The contemplated purchase of the Read must be reasonably certain as to its subjectstock was as much the consideration for the matter, its stipulations, its purposes, its pardefendant's consent that the $125,000, already ties, and the circumstances under which it deposited, should be held as security under was made. It must be, in general, mutual the agreement as was his promise to deposit in its obligations and its remedy.' 3 Pom. the additional $25,000 of bonds. If Edward Eq. Jur. § 1405. The reversal of the judgS. Stokes had not deposited any portion of ment by the general term appears to have the $150,000 of bonds, the court would have been based upon a misconception of the refused to compel their delivery because of facts. In the opinion it is stated that the the failure of William E. D. Stokes to per pledge of the bonds was in consideration of form his part of the contract. The fact that the loan of about $32,000. The fact that the William E. D. Stokes had possession of a por loan was pre-existing evidently had been tion of the consideration, under a prior con overlooked.” tract, does not at all affect the situation. The matter having been passed upon by So far as this agreement is concerned, all of the court, it would be a work of supererogathe bonds were in like condition,

The agree

tion to attempt a further discussion of the ment was indivisible, and William E. D. agreement, and the conduct of the parties Stokes was as much entitled under it to the thereunder, for the purpose of giving further $25,000 in bonds as to the $125,000. But all assurance that the decision made was dethe court could do, in the first case, was to manded by the facts and the law. The judgadjudge that there was a failure of consid ment which that decision of the court eration, and deny to William E. D. Stokes affirmed has become finally conclusive as evi. his claim of right to a specific performance dence as, to the questions actually passed upof the contract as to the $25,000 of bonds on by the court, and, as evidence, it concluwhich had not been delivered. It could not sively determines in this case that the plainadjudge that the plaintiff was entitled to tiff is not entitled to hold the bonds under have delivered to him the $125,000 of bonds the agreement of August 18th. His only for William E. D. Stokes held them, as we right to the bonds, therefore, at the time de have observed, under another agreement, fendant made the tender, was under the and as collateral security for the notes which agreement of the May preceding, in pursu. are involved in this litigation. All that it ance of which the bonds were delivered to could do was to adjudge, in effect, that, by him as collateral security for the payment of reason of the failure of William E. D. Stokes defendant's notes, to enforce collection of to perform his part of the agreement, there which this suit is brought. But, as we have

seeu, the defendant made tender to the plain suggests; and it is for this reason that I tiff of the entire sum due on these notes, to think it proper to analyze the pleadings, and gether with interest and costs, and thereup to point out what I deem to be an inadvert on he became entitled to their possession, ence on that head. Judge HAIGHT pre. But this possession was refused. The plain-mises by saying that it is alleged in the countiff claimed the right to hold them under the terclaim that, “at the time of the execution agreement of August 18th, which claim we of the notes in question, the defendant dehave seen was not well founded. It mat posited with the plaintiff, as security thereters not that the plaintiff was of the opinion for," the bonds in dispute; "that such bonds that he had a right to hold the bonds under were accepted and held by the plaintiff as that agreement. The test by which it is to collateral security for the payment of the be decided whether he converted the bonds notes, and for no other purpose; or not must be answered as the question of that the plaintiff replied by denying that the right is determined; and, it being held that bonds were deposited with him solely as the plaintiff was without right to retain the collateral security for the payment of the bonds after the tender was made to him by promissory notes described in the complaint, the defendant, it follows that his refusal to and alleged that the one hundred and twenmake delivery of the bonds, in compliance ty-five Hoffman House bonds had come inwith the defendant's tender and demand, to his possession prior to August 24, 1891," constituted a conversion of them. The judg. | when the agreement, dated August 18, 1891, ment should be reversed, and a new trial was executed. Upon this statement of the granted, with costs to abide the event.

issues Judge HAIGHT bases his conclusion

that thus "the burden rested upon the deGRAY, J. (dissenting). I agree entirely fendant of showing that the bonds were with the reasoning and conclusion of the held as collateral security for the payment of Chief Judge, and I should not add anything the notes in suit, and for no other purpose." thereto were it not for what I cannot but

In other words, he argues that the defendthink is an oversight on the part of my ant tendered the negative issue; that the Brother HAIGHT, with regard to the plead- plaintiff, in his reply, joined issue with the ings and the real issues which were present defendant thereon; and that the defendant ed to the court below. Judge HAIGHT failed because he did not establish the negawrites for affirmance upon the specific tive averred. ground that the defendant failed to show

Now, let us carefully examine the counterthat the bonds in question were delivered to claim and reply, and see whether any such the plaintiff as collateral security for the pay issue was really tendered. In the first place, ment of the four notes in suit, and for no there is no allegation that, at the time of other purpose; in other words, that he fail the execution of the four notes in suit, the ed to prove a negative. It might be suffi- | defendant deposited with the plaintiff as secient to point out the latter objection, and curity therefor the bonds in question; nor to say that, where a party avers that bonds

is there any allegation that they were acwere deposited with his creditor as col

cepted and held by the plaintiff as collateral lateral security for a debt, he need only security for the payment of the four notes aver and prove the tender of the debt to en- in suit, and for no other purpose. The altitle him to the return of his bonds, and that legation is that at the time of the execution the burden is on the creditor who claims of the first three promissory notes, dated still to retain them to aver and prove that | May 1, 1891, the defendant deposited with they were held by him as security for some the plaintiff, as collateral security therefor, thing besides the debt. An averment of the 100 Hoffman House bonds and 30 United debtor that he deposited the bonds with his Lines Telegraph bonds. This allegation is creditor as security for the debt, and for no undenied in the reply. The next allegation other purpose, is, in legal effect, simply an is that afterwards, and as a further security averment that be deposited them as security | for the payment of these three notes, the defor the debt. The words italicized merely fendant deposited with the plaintiff 25 other emphasize the real facts averred. They are Hoffman House bonds, making a total of unnecessary, and are, as matter of pleading, 125 Hoffman House bonds and 30 United surplusage. The debtor is only called upon Lines Telegraph bonds, "all of which [to to prove the fact, and not the irrelevant quote the counterclaim) were accepted and negative. If the securities are held for any held by the said plaintiff as collateral seother purpose, it is surely for the creditor to curity to the said three notes, and for no aver and prove the facts tending to establish other purpose.” This is the only place in that other purpose. The doctrine suggest the counterclaim where the words "and for ed here reverses the ordinary rules of plead no other purpose" are to be found. Conseing, and the effect thereof upon the trial of quently, this is the only negative allegation the true issues.

on the subject. If that allegation tenderBut, passing that view, which, however, seems ed an issue as to the negative words, it was reasonably clear, I find, upon examining the an issue as to whether, at that point in the pleadings, that the defendant tendered no transaction, the plaintiff held the bonds as such negative issue as my Brother HAIGHT security for the three notes, and none other.

But, even as to that issue, there is no 14th, they were held also for the fourth joinder in the reply. The allegation on note. The defendant consequently tenderthat head is in fact undenied. What we ed no issue as to any other purpose apart find is a denial of something which is not from and outside of the four notes. I may averred. The denial in the reply-and it is add that he tendered no such issue even as the sole denial-is in these words: “Plain to the three notes, for the obvious reason tiff denies that the collateral securities de. that he avers this other and later purpose, scribed in the answer

were de which immediately follows the words "and posited with, and accepted and are held by, for no other purpose," as these words are plaintiff solely as collateral security for the used in their proper relation to the inter promissory notes described in said com. mediate period. Thus, there would seein, plaint and in said answer, and for no other upon the pleadings, to have been no question purpose.” It will be observed that the de- with regard to the Read notes, save such as fendant nowhere alleges in his counterclaim was presented by the August agreement. that these securities were accepted by the As to that, the subject has been fully considplaintiff, or were ever held by him, as col ered by the Chief Judge; and, as Judge lateral for the promissory notes in suit, and HAIGHT expresses no difference of opinion for no other purpose. He expressly alleged on that head, I assume that he, too, concurs that at one time, namely, between May 1, in the general views there presented as to 1891, and August 14, 1891, the plaintiff ac the effect of that agreement. Certainly, there cepted and held these bonds as collateral se is nothing in the sixth clause of that agree curity to the first three notes described in ment which permits us to vary the admitted the complaint, and for no other purpose; status as it was prior to its execution. that is, he then held them for the three It was suggested that the sixth clause might notes, and for none other. The plaintiff be treated as a recital of a past agreement, admits this by not denying it. What he and not as a present covenant. But this is pretends to deny is that he holds the se far-fetched and unworthy of special considcurities for the four notes described in the eration. The sixth clause is among the complaint, and for no other purpose. He numbered covenants, and bears directly upon thus creates an imaginative allegation for the them. It could not well recite a deposit purpose of a fictitious denial. It is apparent which did not exist. The only truthful recit. that he did this deliberately, and could not al which could have been made would have have been misled or mistaken about it. In been a recital of the deposit of $125,000 of proof of this, we need only look at the alle Hoffman House bonds, as collateral to the gation of the counterclaim, which immedi $32,000 of Edward's notes. All else is, necately follows the words "and for no other essarily, a covenant to make an additional purpose.” That allegation is that "after deposit, and to permit both the old (actual) wards," namely, after the acceptance of the and the new (promised) deposits to operate in bonds as security for the three notes, and due course as security for the additional feafor no other purpose, and upon the execution tures, which are specified, as well as for the of the fourth note for $4,000, which was $32,000 of Edward's notes. To talk of this dated August 14, 1891, "it was agreed be as a recital, rather than a covenant, is simply tween the plaintiff and defendant that the to juggle with words. It is impossible thus plaintiff should hold the said 155 bonds as to get away from the facts, and to twist them collateral security, also for the payment of into a legal fiction. We thus have an admitthe said $4,000 note." Now, this latter aver ted possession of these 155 bonds, down to ment is entirely undenied in the reply. the August agreement, for an admitted purWhat, then, does it come to but this: that

pose; namely, as security for the four notes the defendant alleged, and the plaintiff ad in suit. We then have the August agreement mitted, that, prior to the execution of this for the first time extending these admitted fourth note, the latter held the securities purposes upon a new consideration then movfor the payment of the three preceding ing from the plaintiff, which consideration has notes, and for no other purpose; but that, failed. It would seem to be a demonstration upon the execution of the fourth note, that that the defendant, even if he had not gone note was also embraced within the preced upon the stand, was entitled to a verdict for ing purpose, and, when so embraced, came the value of his securities. Certainly, he lost within the cover of the original security? nothing by testifying as he did, in precise It will be observed that the defendant no harmony with the actual facts. It is said longer avers, at the foot of this allegation, that he should have testified, not merely that that the bonds are held for the payment of he allowed the bonds to remain in the plainthe four notes, and for no other purpose. It tiff's possession under the August agreement, amounts to this: that there was, so defend but that they had never previously been in ant alleges, no other purpose until the fourth the plaintiff's possession as security for the note was executed; and then there was that Read notes. What was there to call for such one other purpose. The sequence here is testimony? There was nothing in the plead. clear and distinct. The bonds were held ings. There was something in the agreement; from May to August 14th for the three notes, but the agreement was dead. The defendant and for no other purpose; but, on August narrated the precise facts, as he had pleaded

them in his counterclaim. It seems puerile allowed Edward's proposed second finding, to contend that his counterclaim was proper and disallowed William's, giving as a realy dismissed, because he did not say that the son that he (the judge) had already found plaintiff had never, prior to the August agree William's second request in finding as he ment, held the bonds as security for his con did Edward's second. Now, this was an intingent liability on the Read notes.

No one

accuracy. The judge had not already found had asserted or hinted that the plaintiff had as William requested; for Edward's second ever held them for this contingent liability, finding said that the notes aggregated about except the assertion founded in and upon the $32,000, while William's said that they then August agreement. But, if that August aggregated a balance of $31,300. But the agreement called for testimony on the de only reason why the judge refused to find fendant's part that, though it was dead, yet William's second proposed request was simthe plaintiff never (apart from or outside of ply because he mistakenly thought it was it) held these bonds for the guaranties spec repetitious. He said he had found it, and ified in the sixth clause, did not the defend therefore refused to find it over again. Now ant substantially say as much when he told comes the strangest misconception. Edward the story in its correct and natural order, followed his second request with a third, and concluded by saying that he allowed the asking the learned judge to find that the bonds to remain in the plaintiff's possession Hoffman House bonds (of $125,000) had been for the four notes in suit, and for whatever deposited to secure the $32,000 of his (Ed. was stated in the August agreement, and ward's) notes, and that William held no sefor no other purpose? Is he to be deprived curity to protect the Read notes. The judge of his right at least to have his case consid substituted for this proposed finding Wilered by a jury, because his words are to be liam's third proposed request,-a finding taken literally and technically, rather than which immediately followed his (William's) reasonably and fairly? It will be observed second request, and related exclusively that his counterclaim was dismissed by the thereto. The third finding of William's was trial judge. It was dismissed without any absolutely accurate in its relation to his own specification of the grounds, by either coun second finding. It stated that Edward had sel or court. There was not an intimation given William, as security for “the aforesaid that what the defendant (witness) plainly indebtedness" (namely, the indebtedness of intended to convey was not adequately ex $34,300, specified in William's preceding secpressed. The verdict was clearly directed ond finding), the $125,000 of Hoffman House upon other grounds, relating to the effect of bonds, and the $30,000 of the bonds of the the August agreement and of the previous United Lines Telegraph Company. Edward's judgment. There was certainly enough to third finding was inaccurate, or rather less go to the jury, upon the testimony as given complete than William's, in omitting these and upon the inference which might legiti $30,000 of United Lines Telegraph Company mately have been drawn therefrom, in con bonds. So, the learned judge very properly nection with the pleadings and the record allowed William's third finding, and substiin the prior action.

tuted it for Edward's less complete finding. I shall add a few words as to the effect This, however, had not the slightest relation of that record. It was argued that Justice to the Read notes, which were not the subLawrence in that case found as a fact that ject of controversy before the learned judge. the bonds were held by William as security Now, what was the result of this transfor the Read notes, and that that finding is position of findings? It was that the “aforecontrary to Edward's otherwise uncontra said indebtedness” referred to by William, dicted testimony upon the present trial. in his third request, is no longer the $34,This is certainly an entire misconception of 300 of Edward's notes, but is the indebted. what appears in that record. Both sides ness specified in Edward's second finding, submitted findings to that learned judge. namely, his (Edward's) "notes aggregating Edward, in his proposed second request, ask about $32,000." And yet William now coned him to find that he (Edward) was, prior tends that it was Judge Lawrence's intento August 18, 1891, indebted to William in tion, by this double substitution,—that is, about $32,000 on his four notes, and was also by the substitution of Edward's second proindirectly liable upon the Read notes as posed finding for William's second, and the guarantor. At the same time, William, in substitution of William's third finding for his proposed second request, asked the judge Edward's third,-to find as a fact that Wilto find that Eclward was indebted to him in liam then held both the Hoffman House a little more than $32,000; namely, in a bal bonds and the $30,000 of the United Lines ance of $31,300, on these same four notes. Telegraph Company bonds as security for But William did not add, as Edward had the contingent liability on the Read notes, added, in his proposed second request, that as well as the actual indebtedness on Edhe (Edward) was also indirectly liable upon ward's own notes. William has acknowlthe Read notes as guarantor. In fact, Wil- edged throughout, in his reply, when the liam requested nothing, and asked no find tender was made, and at the trial of the ing at all as to these Read notes. Then present action, that he never held the $30,observe what followed. The learned judge 000 of United Lines Telegraph Company

30 N.E.-23

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